Service Agreement
This Services Agreement (this "Agreement"), dated as of August 30, 2023 (the "Effective Date"), is by and between Four & Three - Design Studio Inc., a corporation formed under the provincial laws of Newfoundland and Labrador ("Service Provider") and Design Customer ("Customer" and together with Service Provider, the "Parties", and each a "Party").
WHEREAS:
A. Service Provider provides design services (the “Services”).
B. Customer desires to retain Service Provider to provide the Services, and Service Provider is willing to perform the Services under the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Customer agree as follows:
Services. Service Provider shall provide the Services to the Customer in connection with the scope of work set out in one or more statements of work to be issued by Customer and accepted by Service Provider (each, a "Statement of Work"). The initial accepted Statement of Work is attached hereto as Schedule A. Additional Statement of Works shall be deemed issued and accepted only if signed by the Service Provider and the Customer.
Customer Obligations. Customer shall promptly provide (i) all required resources, (ii) the necessary assistance and cooperation of Customer's officers, agents, and employees, and (iii) complete, clean, and accurate information and data. If a delay is caused by Customer’s failure to timely perform any obligation or deliver a necessary resource, the delivery schedule for the Services shall be extended for the period of delay.
Fees and Expenses.
In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 3 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Statement of Work, said fee will be payable within ten (10) days of receipt by the Customer of an invoice from Service Provider but in no event more than thirty (30) days after completion of the Services performed pursuant to the Statement of Work.
Customer shall reimburse Service Provider for all reasonable expenses incurred in accordance with the Statement of Work within ten (10) days of receipt by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation.
Customer shall be responsible for all goods and services tax, harmonized sales tax, provincial sales tax, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity or regulatory authority on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Service Provider's income, revenues, gross receipts, personnel or real or personal property or other assets.
Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of twelve percent (12%) per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, legal fees.
Warranties.
Service Provider warrants that it shall perform the Services:
in accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement;
using personnel of commercially reasonable skill, experience, and qualifications; and
in a timely, workmanlike and professional manner.
Service Provider's sole and exclusive liability and Customer's sole and exclusive remedy for breach of this warranty shall be as follows:
Service Provider shall use commercially reasonable efforts to promptly cure any such breach; provided that, if Service Provider cannot cure such breach within a reasonable time (but no more than sixty (60) days) after Customer's written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 7.2.
In the event the Agreement is terminated pursuant to Section 4.2(a), Service Provider shall, within thirty (30) days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Service or Deliverables (as defined in Section 5 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after delivery of such Service or Deliverable to Customer.
SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 4.1, ABOVE, INCLUDING ANY (A) WARRANTY OR CONDITION OF MERCHANTABILITY; OR (B) WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE. ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED.
Intellectual Property.
All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, moral rights, and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by the Service Provider for the benefit of the Customer in the course of performing the Services (as specifically set out in each Statement of Work, the "Deliverables") shall be owned by Customer. Customer hereby grants Service Provider a licence to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis for any purpose at the Service Provider’s discretion.
Notwithstanding anything to the contrary, Service Provider shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, customer materials and data derived therefrom), and Service Provider will be free (during and after the term hereof) to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Service Provider offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
Confidentiality.
From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party"), non-public proprietary and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as "confidential," or if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For the purposes of this Section 6, Receiving Party shall mean the Receiving Party's affiliates and its or their employees, officers, directors, shareholders, independent contractors, lawyers, accountants, and financial advisors.
Upon termination of this Agreement or the disclosing party’s request, the Receiving Party will promptly return or destroy any Confidential Information of the other Party.
Term, Termination and Survival.
This Agreement shall commence as of the Effective Date and shall continue thereafter until terminated pursuant to the terms and conditions hereof (the “Term”).
Either Party may terminate this Agreement for convenience at any time following the completion of the Services under each existing Statement of Work, by providing notice to the other Party.
Either Party may terminate this Agreement, effective upon written notice to the other Party (the "Defaulting Party"), if the Defaulting Party:
materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
becomes insolvent or admits its inability to pay its debts generally as they become due;
becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
is dissolved or liquidated or takes any corporate action for such purpose;
makes a general assignment for the benefit of creditors; or
has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Notwithstanding anything to the contrary in Section 7.3(a), Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder and such failure continues for thirty (30) days after Customer's receipt of written notice of non-payment.
The rights and obligations of the Parties set forth in Section 6, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
Indemnity.
Customer shall at all times indemnify and hold harmless Service Provider, its directors, officers, members, employees, representatives and any other person for whom Service Provider is or may become responsible in law from and against all losses, costs, expenses, liabilities, damages, claims, demands, awards, judgments, actions and proceedings including reasonable legal fees and disbursements which may be made or brought against Service Provider or which Service Provider may suffer or incur as a result of, in respect of or arising out of:
any breach, non-performance or non-fulfillment of any obligation on the part of Customer arising under this Agreement; or
any failure by Customer or its personnel to comply with any applicable federal, provincial or territorial laws, regulations or codes in the performance of its obligations under this Agreement.
Limitation of Liability.
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, AGGRAVATED, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE STATEMENT OF WORK GIVING RISE TO THE CLAIM.
Publicity. Service Provider may reference its general business relationship with Customer for marketing purposes if consented to in writing by Customer.
Entire Agreement. This Agreement, including and together with any related Statement of Works, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its address set forth on the signature page of this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Section):
Notices sent in accordance with this Section 12 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, if sent during the addressee's normal business hours, and on the next business day if sent after the addressee's normal business hours; and (d) on the fifth day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendments and Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 16 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Governing Law. This Agreement is governed by, and construed in accordance with, the laws of the Province of Newfoundland and Labrador and the federal laws of Canada applicable therein.
Force Majeure. If either Party is delayed or prevented from performing due to a cause beyond its reasonable control, including without limitation, strike, labor or civil unrest or dispute, embargo, blockage, work stoppage, protest, criminal acts, acts of the public enemy, pandemic, acts of government in a sovereign or contractual capacity, acts of war or terrorism, or acts of God or nature, the delay will be excused during the continuance of the delay and the period of performance will be extended as reasonable after the cause of delay is removed. If a delay continues for a period of more than 30 days, either Party may terminate this Agreement upon written notice to the other Party and Customer will pay Service Provider for all work performed, Deliverables created and reasonable expenses incurred through the effective date of termination.
Counterparts. This Agreement may be executed in counterparts, with original or electronic signatures, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.